Citation Nr: 0708607
Decision Date: 03/22/07 Archive Date: 04/09/07
DOCKET NO. 03-18 514 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Whether there was CUE in the February 24, 2000, and March
14, 2000, rating decisions that denied entitlement to
dependency and indemnity compensation (DIC) pursuant to
38 U.S.C.A. § 1318.
2. Entitlement to DIC pursuant to 38 U.S.C.A. § 1318,
potentially to include whether new and material evidence has
been submitted.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESSES AT HEARING ON APPEAL
Appellant and Niece
ATTORNEY FOR THE BOARD
Timothy D. Rudy, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1942 to October
1947. He died in October 1999. The appellant is his widow.
The case originated in the Department of Veterans Affairs
(VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The
Board remanded this case back to the RO for additional
development in September 2004 and January 2006. Additional
development has been accomplished by the Appeals Management
Center (AMC) in Huntington, West Virginia.
In January 2006, the Board noted that the issue of error in a
1948 rating action was raised. The Board concluded that that
issue was intertwined with the existing issues, set forth on
the title page and had to be resolved. Thus, the instant
issues were remanded for development.
On May 16, 2006, the AMC issued a rating decision denying
there was clear and unmistakable error in the November 18,
1948 rating decision. The AMC notified the appellant in a
letter dated July 18, 2006. The appellant has not as yet
filed a Notice of Disagreement (NOD) to indicate her desire
to appeal this issue, and as set out below, the appeal period
has not ended, yet the case has been returned to the Board.
As noted in both the September 2004 and January 2006 remands,
the appellant, in a December 1999 claim, also raised a claim
of entitlement to accrued benefits, based on the veteran's
pending claims at the time of his death for service
connection for post-traumatic stress disorder, increased
ratings for his service-connected right and left arm
disabilities, and for a total disability rating based on
individual unemployability. Although the Board referred this
to the RO on both occasions, it appears that the RO has not
taken any action.
The Board notes that the appellant's service representative,
in a memorandum dated in February 2007, also requested these
same issues be referred to the RO for adjudication, as was
directed by the Board. As set out in detail below, that
readjudication was indicated only if error was found in the
1948 rating or additional evidence on these issues was
received. None of this was done, but in view of the issue
revolving around the 1948 rating, additional action on the
certified issues is not yet in order.
The representative also informed the Board that the appellant
had not yet decided whether to appeal the July 2006 rating
decision. The delay in reaching a conclusion one way or the
other obstructs the ability to proceed. As noted below,
appellant will be offered an opportunity to spell out her
desire on this issue, allowing for consideration to proceed
on the issues on appeal.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the
appellant, when further action is required on her part.
REMAND
In view of the recent action by the RO and the appellant's
representative, the Board finds this matter must be remanded
to the RO to await the appellant's decision on whether or not
she will file a NOD to appeal the July 2006 rating decision.
She was notified of the rating decision on July 18, 2006 and,
therefore, has until July 18, 2007 to file a NOD to start the
appeal process on this issue. See 38 U.S.C.A. § 7105 (West
2005); 38 C.F.R. § 20.201 (2006). Resolution of this issue,
should it be appealed, could affect any decision made on the
certified issues.
The Board's January 2006 remand stated in paragraph No. 4:
If the claim for whether there is CUE in the
November 1948 RO decision is denied, the appellant
and her representative must be notified of the
denial and advised of the appellant's appellate
rights. The appellant and her representative are
hereby reminded that to obtain appellate
jurisdiction of an issue not currently in appellate
status, a timely appeal (an NOD, and, after
issuance of an SOC, a substantive appeal) must be
perfected. While the RO must furnish the appellant
the appropriate time period in which to do so, the
appellant should perfect an appeal of the claim for
whether there is CUE in the November 1948, RO
decision, if desired, as soon as possible to avoid
unnecessary delay in the consideration of the
appeal.
Since the RO notified the appellant of its rating decision on
July 18, 2006, the appellant has until July 18, 2007 to file
her NOD to the July 2006 rating decision. The RO has failed
to furnish the appellant the appropriate time period in which
to appeal. Stegall v. West, 11 Vet. App. 268 (1998).
Adjudication by the Board within this time period of the
other issues would be premature pending resolution of the
appellant's CUE issue regarding the November 1948 rating
decision as they are intertwined. See Harris v. Derwinski, 1
Vet. App. 180, 183 (1991) (issues are "inextricably
intertwined" when they are so closely tied together that a
final Board decision cannot be rendered unless both issues
have been considered). The appellant is essentially
contending that proper disability ratings, if assigned in
1948, would have resulted in a combined 95 percent rating
(which would round to 100 percent), and that such a total
rating would have been in effect for 10 years prior to the
veteran's death. Further, it is asserted this outcome would
render DIC under 38 U.S.C.A. § 1318 for application.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should notify the appellant
and her representative that they should
notify the RO as soon as possible whether
or not they disagree with the RO's July
2006 rating decision that denied there was
clear and unmistakable error in the
February 18, 1948 rating decision that
awarded the veteran an 80 percent combined
disability rating for residuals of gunshot
wounds to the left hand and forearm and to
the right hand and forearm. If the
appellant agrees with the July 2006 rating
decision, then she or her representative
are urged to so notify the AMC/RO, in
writing, as soon as possible so that the
appellant's appeal of her other issues may
proceed. If she disagrees with the July
2006 rating decision, then the appellant
or her representative must file a Notice
of Disagreement soon, but no later than
July 18, 2007, so that the RO can issue a
statement of the case (SOC) on the issue
of error in the 1948 rating decision. To
complete the appeal a substantive appeal
should be filed. Again, consideration of
the certified issues is obstructed by the
issue concerning the 1948 rating. The
sooner appellant and her representative
decide the action to be undertaken on that
issue, the sooner the certified issues can
be addressed.
2. Then, either after the appellant has
notified the RO of her intention not to
appeal the July 2006 rating decision or
after she has filed both a Notice of
Disagreement and, after the issuance of a
SOC, a Substantive Appeal, the claims file
should be returned to the Board for
further appellate consideration of the
certified issues which remain on appeal.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The appellant may
furnish additional evidence and/or argument during the
appropriate time frame. See Kutscherousky v. West, 12 Vet.
App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).